NEW YORK (1010 WINS) – The judge in Daniel Penny’s trial said Friday he’s dismissing the top count against Penny—second-degree manslaughter—after the jury was twice unable to reach a unanimous decision on the charge against him in the subway chokehold death of Jordan Neely.
Judge Maxwell Wiley said jurors can however move forward and consider the lesser count of criminally negligent homicide. They will deliberate on that count when they return to court on Monday, which will be the fifth day of deliberations on the contentious and closely watched case.
Prosecutors with the Manhattan D.A.’s Office had proposed dismissing the manslaughter charge—and keeping the lesser charge—after the jury deadlocked. That was over the objections of the defense, which had moved for a mistrial.
The 12-person jury panel—made up of seven women and five men—had previously been instructed that they needed to reach a verdict on the top charge before they could consider the criminally negligent homicide charge.
But they deadlocked twice on the manslaughter charge, informing the judge in the morning, and then again in the afternoon, that they were "unable to come to a unanimous vote on count 1."
Criminally negligent homicide carries punishments ranging from probation to up to four years in prison. The more severe charge of manslaughter had carried up to 15 years.
Criminally negligent homicide involves engaging in serious “blameworthy conduct” while not perceiving such a risk. Manslaughter, meanwhile, requires proving that a defendant recklessly caused another person’s death.
Shortly before taking their lunch break, the jury had requested clarification on how they determine whether a person reasonably believes physical force to be necessary. “We’d like to better understand the term ‘reasonable person,’” their note read in part.
Wiley told the jury it was for them to decide what a reasonable person would do in the situation—whether a person would have reasonably believed Neely was about to use physical force against Penny or someone else.
Penny, a 24-year-old Marine veteran and architecture student, has pleaded not guilty in the death of Neely, a 30-year-old homeless man and ex-busker who witnesses said was acting erratically on an F train in SoHo on May 1, 2023.
Prosecutors allege Penny recklessly squeezed Neely’s neck too hard and for too long, but Penny’s lawyers maintain his actions were justified in protecting fellow subway riders.
Neely was a onetime subway performer with a tragic life story: His mother was killed and stuffed in a suitcase when he was a teenager. His adult life spiraled into homelessness, psychiatric hospitalizations, drug abuse and criminal convictions, including for assaulting people at subway stations.
During the monthlong trial, the anonymous jury heard from witnesses, police, pathologists, a Marine Corps instructor who trained Penny in chokehold techniques, as well as Penny’s relatives, friends and fellow Marines. Penny chose not to testify.
The Associated Press contributed to this report.